Earlier this year, the South Carolina Supreme Court's decision in the case of "Rice v. Doe,” 2024 WL 255510 (S.C. Jan. 24, 2024) addressed a critical aspect of uninsured motorist litigation. Specifically, the procedural requirements for filing a "John Doe" action under sections 38-77-170 and 38-77-180 of the South Carolina Code. The court clarified that producing a witness affidavit, as required by subsection 38-77-170(2), is not a condition precedent for the commencement of a John Doe lawsuit. Instead, such an affidavit can be produced after the lawsuit has started. However, it must be provided promptly upon request, and failure to do so can result in the action being dismissed. In other words, failure to produce a witness affidavit when the complaint is filed is not a fatal flaw to the case.
Background of the Case
The case originated from an accident where Peter Rice, a passenger in a car, was injured when the vehicle he was riding in swerved to avoid colliding with an unidentified driver's vehicle and hit a tree. Rice filed a civil action against the unidentified driver (the John Doe), seeking recovery under an uninsured motorist policy based on an eyewitness’s account of the event.
Rice encountered procedural issues on whether the witness affidavit was produced timely as required under South Carolina law. Particularly, John Doe, immediately after answering, filed a motion to dismiss for Rice’s failure to provide the affidavit. Shortly after the motion to dismiss was filed, Rice produced an affidavit that failed to establish that there was no contact between the John Doe driver and the vehicle Rice was riding in as required under South Carolina’s UM statute. This motion was denied.
About 10 months after the initiation of the lawsuit, Rice amended the affidavit to establish that there was indeed no contact. However, just prior to trial, the judge dismissed the case holding that the presentation of the affidavit was untimely and that such affidavit must be presented at the time the suit is filed.
Despite these procedural disputes over the timing of the witness affidavit's filing, however, the South Carolina Supreme Court concluded that while the affidavit's timely production is crucial, its absence at the time of filing does not invalidate the initiation of a John Doe action.
Practical Advice for Plaintiff’s Lawyers
This case provides guidance to Plaintiff’s lawyers who may not have a witness affidavit readily available at the time of filing and may have the need to file suit within a short timeline.
Nonetheless, given the court's emphasis on promptness, plaintiffs in John Doe actions should strive to obtain and produce the required witness affidavit as soon as possible after commencing the lawsuit. Doing so likely avoids potential procedural hurdles that could delay or jeopardize the case.
Importantly, the Court also held that if a defendant or insurer requests the witness affidavit during discovery, plaintiffs should comply promptly. Plaintiffs should not play strategic games by delaying or withholding the affidavit which could lead to adverse rulings, including potential dismissal of the case.
In a perfect world, a plaintiff’s attorney would have the witness affidavit ready to be filed with the complaint. But just like the practice of law, reaching nonparty witnesses may not be easy. So in crucial timelines, it is important to know that the absence of a witness affidavit with the complaint in a Joh Doe action is not fatal to your case.
"Rice v. Doe" underscores the importance of procedural compliance while also providing flexibility in how John Doe actions can be initiated in South Carolina. For legal practitioners, the decision serves as a reminder of the balance between strict adherence to procedural requirements and the overarching goal of ensuring justice for injured parties.
